[Beethoven]

That filibuster deal may not have been so bad after all!

It seems that we may be pretty much guaranteed a justice along the lines of Scalia or Thomas unless Bush does something to totally screw this up, that is.......


Source: http://www.postgazette.com/pg/05185/532817.stm


Supreme court choice to test Senate

Filibuster pact hurts Democrats in debate over O'Connor's seat

Monday, July 04, 2005

By Charles Babington and Susan Schmidt, The Washington Post



WASHINGTON -- Democrats' hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by a 6-week-old bipartisan deal on judicial nominees, key senators said yesterday.

With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only in "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances," and therefore a filibuster can be justified only on questions of personal ethics or character.

The distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative whom many activist groups on the political right desire. Holding only 44 of the Senate's 100 seats, Democrats have no way to block a Republican-backed nominee without employing a filibuster, which takes 60 votes to stop.

GOP leaders, sensing the Democrats' bind, expressed confidence yesterday that the Senate will confirm Bush's eventual nominee, no matter how ideologically rigid. "I think there is every expectation, every reason to believe that there will be no successful filibuster," Majority Whip Mitch McConnell, R-Ky., said on "Fox News Sunday."

Under the "Gang of 14" accord, the seven Republican signers agreed to deny Majority Leader Bill Frist, R-Tenn., the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.

Sen. Lindsey Graham, R-S.C., one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear ideological differences will not justify a filibuster of a Supreme Court nominee.

Sen. Ben Nelson of Nebraska, a leader of the seven Democratic signers, largely concurred.

The debate goes to the heart of Democratic leaders' strategy to prevent Bush from replacing the centrist, swing-voting O'Connor with a jurist more aligned with conservatives Clarence Thomas and Antonin Scalia.

White House aides say Bush will not announce his choice for the court until after he returns from this week's Group of Eight summit of industrialized nations in Scotland.

[dolanp]

Of course there is the underlying assumption that Democrats won't go back on their word, which is a pretty big assumption.

On a side note, *** is up with damn Democrats and affirmative action. NO judge should rule affirmative action legal, it is discrimination by its very definition! Ridiculous policy item.

[2nd Amendment]

Amazing to me how this is always phrased, "Issues that sharply divide Americans" and such. So we can't have a conservative because they are divisive...but we can have a leftist because they hold opposing "values"...which is...um...not divisive... :confused: :banghead:

[Vernal45]

We are pretty much guaranteed a Conservative SCOTUS Justice!

NO, we are not guaranteed much of anything. I can see Bush caving to the Democrats. Heck, if it were up to me, I would use the nuclear, um constitutional option, and get the person I want.

[antsi]

"...proven track record on crime and consumer safety..."
"...mainstream, moderate candidate..."
(translation): wants to ban all guns
considers press releases from the Violence Policy Center to be valid legal precedents
principles from the European Union constitution are a valid basis for US legal decisions
the constitution is a "living document," so it means whatever you feel like it should mean.

"...fanatical right-wing ideologue..."
"...divisive opinions on controversial issues..."
"...weak on public safety..."
"...wants to turn back the clock to the 1950's..."
(translation):
thinks it is possible that at least one gun owner in the US is not a criminal
has actually read the constitution and belives that constitutional law should be based on it

[fourays2]

Please Don't Swear.
--Don Gwinn

[Waitone]

We are guarenteed nuthin'!!!

We are told spinelessrepublicans won the standoff over judges. We are told conservatives got conservatives nominated to the courts.

What we don't know is what was given up to get those three judges. I also remember after the fight over campaign finance control hearing republicans won that battle also. After all democrats effectively cut themselves off from their contribution base. Never believed it when I heard it. Only after the election did we learn CFC allow 527's to become the dominant source of funds free democrats from the pesky problem of declining small people support. Politicians will never willingly cut themselves off from their base.

Not for one minute do I think democrats lost in the battle for court judges. I fully expect to see some kind of deal come out similar to "power sharing" that Trent Lott crafted which basically let the minority control the senate. If the facts be know, I'd be willing to bet the supermajority rule in the committee is a result of "power sharing" Lott agreed to. The fact that Bush et al complain about the supermajority but fail to explain why the rule was changed in the recent past tells me republicans are responsible for giving away the store. If true, the entire party is corrupt.

We will be in the clear only if Bush flips the safety off and triggers the nuclear option. I don't think it will happen since too many republicans want commity in the senate. They don't play to win; they play to avoid losing.

[El Tejon]

I don't want a conservative!

I want an originalist! You know someone who has actually read the Constitution and will hold the government to it. :scrutiny:

[rock jock]

someone who has actually read the Constitution and will hold the government to it.
Yes, exactly......a conservative.

[nico]

Yes, exactly......a conservative.
lol the best thing "conservatives" have done for us (gun owners) in a long time is to not renew the AWB. Plenty of "conservatives" also agree with the Raich ruling.

[El Tejon]

rock, :neener:. Alright, alright, if you want to define conservative as that, O.K.

[rock jock]

Actually, I would be happy if they nominated someone who agrees to abide by Original Intent, w/o knowing any of their positions on particular issues.

[Sam]

At this point I might be happy if they nominated someone who could understand the english language and could prove that they had read the Constitution at some point in their adult life!

Sam

[publius]

Plenty of "conservatives" also agree with the Raich ruling.

I guess so, but very few of them seem to want to talk to me about it. I tend to ask questions like, where did Justice Thomas get it wrong here (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html)?

And, if you told Mr. Madison that homegrown cannabis plants or machine guns for personal consumption would one day wind up among the "few and defined (http://thomas.loc.gov/home/histdox/fed_45.html)" powers of the federal government, and would not be considered to be among "the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State," and thus State level concerns, do you think he would agree with that interpretation of the commerce clause?

I haven't had an originalist conservative who supports the Raich decision decide to answer that last one yet. I'll keep trying, though.

[odysseus]

Plenty of conservatives also voted for all of the lines of the Patriot Act.

I think a Constitionalist would have had a different take on that. They may intersect often, but a Constiutionalist is not the same as a conservative.

[publius]

Kozinski would get the nod if I nominated the next Justice, mainly for this opinion:

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

I mainly just want one who can tell some grains from a heap (http://www.reason.com/hod/js063005.shtml).

[Standing Wolf]

Other than tax increases, ever larger defecits, and further encroachments against the nation's civil liberties, there are no guarantees from the federal government.

[mons meg]

Hey...is Robert Bork dead yet? He's an originalist, right? Someone oughta nominate him! ;)

[RocketMan]

Never underestimate the Republicans ability to compromise away any advantage they might have.

On an aside, Fourays2's post should be deleted. Not fit for THR, in my opinion.
Perhaps he could edit it...

[mgw1181]

Hey...is Robert Bork dead yet? He's an originalist, right? Someone oughta nominate him!No thank you, he a full on "collective right" believer in regards to the 2nd Amendment. If I were in the Senate, I'd Bork him again just for that.

[natedog]

Yes, exactly......a conservative.


:rolleyes:

[Bruce H]

The way things are today I fully expect an illegal alien just left of Teddy Kennedy to be nominated. Confirmed too.

[publius]

On an aside, Fourays2's post should be deleted. Not fit for THR, in my opinion.
Perhaps he could edit it...

Yes. My suggestion would be:

We're the recipients of government services.*
.
.
.
.
.
.
.
.
.
*In the same sense that a bull services a cow.

[R.H. Lee]

'Conservative'? I'm not sure that word has any relevant meaning. All the self professed adherents of 'conservatism' trade away its principles in exchange for.........something, I'm not sure what they get in return. They given so much away, there's nothing left to conserve.

I think 'conservative' is just a word to be thrown out there at election time, something for the suckers to chew on at the ballot box, you know, just before they get 'schtooked' for the umpteenth time.

I ain't buyin' it again.

[longeyes]

Bush said today he is looking for "diversity" (now there's a conservative for ya) and wants to take his time. He's had how many years to develop that short list...? Diversity = Alberto Gonzales.

[Waitone]

Bush is polling candidates with various voting blocks.

[nico]

From what I've heard about her, I'd be very happy if his idea of "diversity" meant nominating (and standing behind!) Janice Rogers Brown. I think it'd be interresting, assuming the repubs have the balls to back her up and make the dems do a real filibuster, to see the dems call her a dinosaur, a racist, or any of the other names they called her when she wasn't the only nominee.

[publius]

Dinosaur, huh? I like her already! ;)

Uh, assuming we're talking "old" as in late 1700s, like Thomas, not as in mid 1900s, like Scalia...

[lunaslide]

I love the idea of Justice Brown being nominated. She's just the type of SC Justice we're looking for and it would make the statists flip-out. Basically Justice Brown considers most of the Commerce Clause, Necessary and Proper Clause and other jurisprudence starting around the time of the New Deal to be patently unconstitutional and doesn't consider the precidents of those cases to be binding because of their poor adherence to the consitution. She's a keeper!

[bjbarron]

I'd go for Garza (http://slate.msn.com/id/2121270/?nav=ais), but after listening to Bush this weekend...I'm not hopeful.

Garza seems more in the Thomas mold than Scalia...

In Causeway Medical Suite v. Ieyoub, expressed dismay that the Supreme Court's broad readings of the word "liberty" in the Constitution "have slowly eroded the scope of public debate." Garza argued that if the court had stayed out of several arenas—for example, marriage, child rearing, school curricula, abortion—state laws might have changed "as public attitudes changed." Instead, "the people's Constitution—at least as to unenumerated constitutional rights—has become the Court's Constitution."

I see him being called pro-2A as an individual right, but this is all I could find of his decisions that had anything to do with guns...

A majority opinion in United States v. Castillo, 179 F.3d 321 (5th Cir. 1999), holding that the fact of whether a firearm used in a crime of violence was a machine gun was a sentencing element under the relevant statute, not an essential element of an offense, and therefore did not have to be found by a jury. The Supreme Court reversed 9-0. 530 U.S. 120 (2000).

Please note: I do not agree with him on everything...but I do agree that the great non-constitutional questions of our time (like abortion) should be decided at the state level and by legislation...not court fiat. And my disclaimer is that unlike a lot of guys on this forum, I'm generally pro-choice. But Roe still pisses me off because it wasn't decided by the people.

[Hawkmoon]

I don't want a conservative!

I want an originalist! You know someone who has actually read the Constitution and will hold the government to it.
Ditto, x10
Yes, exactly......a conservative.
No. An originalist, or what I call a "strict constructionist," will approach all questions with NO personal or political agenda. The only legitimate question is "Is this addressed by the Constitution and, if so, what does the Constitution say about it?"

[publius]

Similar in ways, but decidedly NOT the same:

Strict Constructionist (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html) vs Conservative (http://straylight.law.cornell.edu/supct/html/03-1454.ZC.html) on the biggest federalism issue of our day: the interpretation of the interstate commerce clause.

[Mr. James]

publius,

Bingo. We need the former, not the latter.

[longeyes]

The bold stroke would be Janice Rogers Brown. Unimpugnable credentials, "diversity" with a capital D., major dilemma for the lefties.

Who Bush picks will tell us a lot about him, maybe too much.

[El Tejon]

long, I second your nomination. Just to see the fallen look on the newsreaders faces. :D

[GunGoBoom]

Judge Janice Brown sounds very very good. Hawkmoon, you are exactly right. Scalia is a "conservative". Thomas is a strict constructionist, or original intent justice. We need the latter, not a "conservative" like Scalia who concludes that the federal power to "regulate interstate commerce" is so broad as to include making a federal CRIME the wholly intra-state distribution of an herb/drug, prescribed by a medical doctor, and given away free. If Bush nominates Alberto Gonzales, I would puke incessantly for days. He's a "conservative" through and through, not a constructionist.

[Henry Bowman]

JRB to replace O'Connor and then Alex Kozinski to replace Rehnquist. Thomas to Chief Justice.

The remaining lefties on the bench who didn't die from the trama of that would hang on until eventually there is a lefty in the White House.

[Silver Bullet]

I don't want a conservative!

I want an originalist! You know someone who has actually read the Constitution and will hold the government to it.
+1

[Sam Adams]

Hey...is Robert Bork dead yet? He's an originalist, right? Someone oughta nominate him!

Bork is an anti-gun statist. He pretty much believes that whatever the majority (i.e. 218 Congressmen and 51 Senators) want is OK, and minorities be damned. I was originally upset that he was "Borked," though since the early '90's I've been thrilled about it.

[Sam Adams]

JRB to replace O'Connor and then Alex Kozinski to replace Rehnquist. Thomas to Chief Justice.

I second those choices. Look below, you can see that I like Kozinski!

Oh, BTW, Luttig to replace either Stevens (85) or Ginsberg (has cancer), whichever one dies or resigns first.

I wouldn't mind seeing Roy Moore nominated, just to see how many liberals died of apoplexy, but there's as much chance of that happening (let alone him being confirmed) as there is of me getting into bed with the latest hot model and surviving the next night at home.

[Flyboy]

I'm kind of inclined toward Judge Samuel B. Kent (http://air.fjc.gov/servlet/tGetInfo?jid=1261) myself.

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. . . .

Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters ... require the application of general maritime rather than state tort law. ... The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). . . .

Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig. Now, alas, the Court must return to grownup land. . . .

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefings ... the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is granted.
http://www.absolvitor.com/humour/story03.html

Defendant's request for a transfer of venue is centered around the fact that Galveston does not have a commercial airport into which Defendant's employees and corporate representatives may fly and out of which they may be expediently whisked to the federal courthouse in Galveston. Rather, Defendant contends that it will be faced with the huge "inconvenience" of flying into Houston and driving less than forty miles to the Galveston courthouse, and act that will "encumber" it with "unnecessary driving time and expenses." The Court certainly does not wish to encumber any litigant with sucn an onerous burden. The Court, being somewhat familiar with the Northeast, notes that perceptions about travel are different in that part of the country than they are in Texas. A litigant in that part of the country could cross several states in a few hours and might be shocked at having to travel fifty miles to try a case, but in this vast state of Texas, such a travel distance would not be viewd with any surprise or consternation. Defendant should be assured that it is not embarking on a three- week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court's predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant's worries about the inconvenience of the drive, the Court notes that Houston's Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

As to Defendant's argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court's kingdom for a commercial airport! The Court is unpersuaded by this argument because it is not this Court's concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East.
http://www.thesmokinggun.com/archive/skent2.html

The governments of Guatemala, Panama, Nicaragua, Thailand, Venezuela, and Bolivia have filed suit in [several geographically diverse locales in the U.S.] Why none of these countries seems to have a court system their own governments have confidence in is a mystery to this Court. Moreover, given the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian ... even on the Discovery Channel.
Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia! Still, the Court would be remiss in accepting an obligation for which it truly does not have the necessary resources. ...

[T]he capacity of this Court to address the complex and sophisticated issues of international law and foreign relations presented by this case is dwarfed by that of its esteemed colleagues in the District of Columbia who deftly address such awesome tasks as a matter of course. ... Such a Bench, well-populated with genuinely renowned intellects, can certainly better bear and share the burden of multidistrict litigation than this single judge division, where the judge moves his lips when he reads ....

[I]t is the Court's opinion that the District of Columbia, located in this Nation's capital, is a much more logical venue for the parties and witnesses in this action because, among other things, Plaintiff has an embassy in Washington, D.C., and thus a physical presence and governmental representatives there, whereas there isn't even a Bolivian restaurant anywhere near here! Although the jurisdiction of this Court boasts no similar foreign offices, a somewhat dated globe is within its possession.

While the Court does not therefrom profess to understand all of the political subtleties of the geographical transmogrifications ongoing in Eastern Europe, the Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the Court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn't located there either).

Furthermore, as this Judicial District bears no significant relationship to any of the matters at issue, and the judge of this Court simply loves cigars, the Plaintiff can be expected to suffer neither harm nor prejudice by a transfer to Washington, D.C., a Bench better able to rise to the smoky challenges presented by this case, despite the alleged and historic presence there of countless "smoke-filled" rooms.
http://www.thesmokinggun.com/archive/obiwan4.html

Good old Judge Samuel B. Kent down in the Galveston Division of the Southern District of Texas can be pretty funny (see "Judge Kent Strikes Again" and "Galveston Pride"), but I doubt if many lawyers in Galveston are laughing after his latest noteworthy order. In June 2001, he entered an order on a motion to transfer for improper venue. In denying the motion, he ripped into the lawyer who filed the motion, stating:

[A]ny person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant's Motion is patently insipid, ludicrous and utterly unequivocally without any merit whatsoever. Worse, it is just plain blatantly wrong in light of the unambiguous language of a decades old federal statute and veritable mountains of case law addressing venue propriety.


Sound bad? It gets worse. Judge Kent went on to state that "Defendant's obnoxiously ancient, boilerplate, inane Motion is emphatically DENIED."

Believe it or not, it gets even worse than that. For the coup de grace, Judge Kent ended the order by disqualifying the lawyer from further appearing in the case "for submitting this asinine tripe."

I have a feeling Judge Kent might be getting a whole lot more motions to transfer venue, but then again, maybe not.
http://www.lawhaha.com/strange.asp#A87

Of course, Kozinksi has his own stylistic flair to recommend him:
Ninth Circuit Court of Appeals Judge Alex Kozinski is well known for sprinkling pop culture references throughout his opinions, particularly in his famous Syufy opinion, which wove in the titles of more than 200 movies. (Scroll down for “Movie Mystery Solved!” and “Coming Soon to a Footnote Near You!”)

A less noticed but just as fun pop-culture-laden opinion is his dissent to an order denying rehearing en banc in White v. Samsung Electronics America, Inc., a case in which the 9th Circuit upheld a “right of publicity” claim by former game show hostess Vanna White against Samsung for using a robot resembling her game show persona in a television commercial.

Complaining that, “[u]nder the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity,” Kozinski excoriates the court for over-extending intellectual property rights in an opinion jammed full of pop culture references.

Footnote 6 alone includes references to (in order): grunge rocker Tad Doyle, the Hell’s Angels, Marvel Comics, Breakfast at Tiffany’s, Breakfast of Champions, The Electric Kool-Aid Acid Test, Looking for Mr. Goodbar, The Coca-Cola Kid, The Kentucky Fried Movie, Harley Davidson and the Marlboro Man, The Wonder Years, Wonder Bread, Joseph and the Amazing Technicolor Dream Coat, Janis Joplin, Paul Simon, Leonard Cohen, Bruce Springsteen, Prince, dada, Monty Python, Roy Clark, Mel Tillis, the Talking Heads, Andy Warhol, REO Speedwagon, 38 Special, Jello Biafra and the Dead Kennedys.
http://lawhaha.com/strange.asp#A20

[publius]

An excerpt from Kozinski's comments in UNITED STATES v. RAMIREZ-LOPEZ:

One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:
Lawyer: Juan, I have good news and bad news.
Ramirez-Lopez: OK, I’m ready. Give me the bad news first.
Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you’re going to spend many years in federal prison.
Ramirez-Lopez: Oh, man, that’s terrible. I’m so disappointed. But you said there’s good news too, right?
Lawyer: Yes, excellent news! I’m very excited.
Ramirez-Lopez: OK, I’m ready for some good news, let me have it.
Lawyer: Well, here it goes: You’ll be happy to know that you had a perfect trial. They got you fair and square!
Ramirez-Lopez: How can that be? Didn’t they keep me in jail for two days without letting me see a judge or a lawyer? Weren’t they supposed to take me before a judge right away?
Lawyer: Yes, they sure were. But it’s OK because you didn’t show that it harmed you. We have a saying here in America: No harm, no foul.
Ramirez-Lopez: What do you mean no harm? There were twelve guys in my party who said I wasn’t the guide, and they sent nine of them back to Mexico.
Lawyer: Yeah, but so what? Seeing the judge sooner wouldn’t have helped you.
Ramirez-Lopez: The judge could have given me a lawyer and my lawyer could have talked to those guys before the Migra sent them back.
Lawyer: What difference would that have made?
Ramirez-Lopez: My lawyer could have taken notes, figured out which guys to keep here and which ones to send back.
Lawyer: Hey, not to worry, dude. The government did it all for you. They talked to everyone, they took notes and they kept the witnesses that would best help your case. Making sure you had a fair trial was their number one priority.
Ramirez-Lopez: No kidding, man. They did all that for me?
Lawyer: They sure did. Is this a great country or what?
Ramirez-Lopez: OK, I see it now, but there’s one thing that still confuses me.
Lawyer: What’s that, Juan?
Ramirez-Lopez: You see, the government took all those great notes to help me, just so we’d know what all those guys said.
Lawyer: Right, I saw them, and they were very good notes. Clear, specific, detailed. Good grammar and syntax. All told, I’d say those were some great notes.
Ramirez-Lopez: And twelve of those guys all said I wasn’t the guide.
Lawyer: Absolutely! Our government never hides the ball. The government of Iraq or Afghanistan or one of those places might do this, but not ours. If twelve guys said you weren’t the guide, everybody knows about it.
Ramirez-Lopez: Except the jury. I was there at the trial, and I remember the jury never saw the notes. And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn’t the guide.
Lawyer: Right.
Ramirez-Lopez: Isn’t the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
Ramirez-Lopez: The jury was supposed to decide whether I was the guide or not, right? Don’t you think they might have had a reasonable doubt if they’d heard that twelve of the fourteen guys in my party said it wasn’t me?
Lawyer: He-he-he! You’d think that only if you didn’t go to law school. Lawyers and judges know better. It makes no difference at all to the jury whether one witness says
it or a dozen witnesses say it. In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time. So the government
did you a big favor by removing those nine witnesses
before they could screw up your case.
Ramirez-Lopez: I see what you mean. But how about the notes? Surely the jury would have gotten a different picture
if they had just seen the notes of nine guys saying I wasn’t the guide. That wouldn’t have taken too long.
Lawyer: Wrong again, Juan! Those notes were hearsay and in this country we don’t admit hearsay.
Ramirez-Lopez: How come?
Lawyer: The guys writing down what the witnesses said could have made a mistake.
Ramirez-Lopez: You mean, like maybe one of those twelve guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?
Lawyer: Exactly.
Ramirez-Lopez: You’re right again, it probably happened just that way. I bet those guys from Immigration wrote down, “Juan wasn’t the guide,” even when the witnesses said loud and clear I was the guide—just to be extra fair to me.
Lawyer: Absolutely, that’s the kind of guys they are.
Ramirez-Lopez: You’re very lucky to be working with guys like that.
Lawyer: Amen to that. I thank my lucky stars every Sunday in church.
Ramirez-Lopez: I feel a lot better now that you’ve explained it to me. This is really a pretty good system you have here. What do you call it?
Lawyer: Due process. We’re very proud of it.

[Waitone]

Lemme see if I got this correct.

Kosinski put what you quoted in an opinion?

If what you say is true, I want the guy hired right now! We need more of it. :evil:

[Mr. James]

It is indeed the opening to his stinging dissent in United States v. Ramirez-Lopez.

Someone familiar with this case? The 9th Circus withdrew its January 2003 decision affirming Ramirez-Lopez's conviction on 20 March 2003.

In light of the district court's order dismissing the indictment with prejudice on March 6, 2003, the opinion filed January 10, 2003 is withdrawn. The case is dismissed. We further order that mandate issue immediately.

So, while this was playing out at the apellate level, a district court took it upon itself to quash the underlying indictment? :scrutiny:

[The Rabbi]

The only guarantee from the Democrats is that they will do what is in their self-interest regardless of whatever they agreed to in the past. And then they will blame the Republicans for their decision.
I think Judge Rufus T. Firefly would make a fine JSC.

[lunaslide]

Schumer says Democrats "going to war" regardless of who nominee is (http://powerlineblog.com/archives/010946.php)

Drudge quotes Schumer as saying:

It's not about an individual judge… It's about how it affects the overall makeup of the court. We are contemplating how we are going to go to war over this. Even William Rehnquist is more moderate than they expected. The only ones that resulted how they predicted were [Antonin] Scalia and [Ruth Bader] Ginsburg. So most of the time they've gotten their picks wrong, and that's what we want to do to them again.

[beerslurpy]

I am the most die hard of Janice Rogers Brown fans, but after reading that Kozinski opinion I am nearly dying of laughter and also overcome with respect for him. Maybe he can replace Rehnquist in a few months?

I'm gonna hit findlaw for more kozinski opinions tonight.

[CZ-100]

I don't want a Conservative or a Liberal SCOTUS... I want a STRICT Constitionalist!

Someone that WILL Uphold the Constitution, not interpret it for their on agenda.

[saltydog]

I don't want a Conservative or a Liberal SCOTUS... I want a STRICT Constitionalist!

Right on! But its not going to be from Bush. It will be "Moderates". Republicans have always went out of their way to please the Demo's.
Repub's are scared of them for some stupid reason! :what:

[publius]

after reading that Kozinski opinion I am nearly dying of laughter

This is the best part:

Ramirez-Lopez: Isn’t the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.

LOL!

Kozinski also wrote the opinion for the 9th in US v Stewart (http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf), worth a read even though the conservatives allied with the other flavors of statists on the Supreme Court to remand the decision (http://www.supremecourtus.gov/docket/04-617.htm) to the 9th for reconsideration in light of Raich (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html).

[longeyes]

Repub's are scared of them for some stupid reason!

Not scared, in cahoots.

It is all political theater and we ordinary folk are the audience, they are the players.

[Silver Bullet]

whichever one dies or resigns first.
Hey, about a Dead Pool ? :evil:

[rhubarb]

Much as I would like to have Supreme Court Justice Brown, I think Bush might very well nominate Gonzales out of spite. Although I disagree with Bush's centrist/statist ideology, I understand and respect that he is unwavering in his viewpoints and allegiances. If he thinks Gonzalez is the man for the job, he's gonna nominate Gonzales. Critics be damned.

Surely though, neither of those candidates will be considered. Bushies have most likely been considering who will be nominated for some time - since before Gonzales' or Brown's nominations to their current posts. He must have decided that those two candidates were not yet ready for the SCOTUS. Who will it be? :confused:

[Waitone]

<Poster's Comment--"Unease" is a better word.>

http://www.newsmax.com/archives/ic/2005/7/7/144433.shtml

Novak: Bush's Gonzales Support Frightening

Thursday, July 7, 2005 2:34 p.m. EDT

Novak: Bush's Gonzales Support Frightening

Charging that President Bush may be an obstacle to appointing a conservative Supreme Court justice, columnist Robert Novak chastised the President for his remarks defending Attorney General Alberto Gonzales.

Novak fears Bush's remarks will be seen as a signal that the President intends to name him to fill the vacated seat of Justice Sandra Day O'Connor.

Noting that Sen. Kennedy has managed to establish in the media's warped minds a new standard for "mainstream conservatism" by citing the liberal O'Connor as a genuine conservative, Novak wrote that by contrast, the President "has put forth 'friendship' as a qualification for being named to the high court."

According to Novak, Both Kennedy's and Bush's statements left conservative Republicans, who he recalls have spent more than a decade planning for this moment to change the balance of power on the Supreme Court, reeling from blows delivered by two dissimilar political leaders.

As a result, Novak wrote, it's not Kennedy, who is the bigger obstacle in the way of a conservative court, but the President himself.

"While Kennedy's ploy presents a temporary problem, Bush's stance could be fatal," according to Novak. "The Right's morale was devastated by the president's comments in a USA Today telephone interview published on the newspaper's front page Tuesday: 'Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it.'"

To Novak's politically-sensitive ears, that sounded as if Bush, whom he called a stubborn man, might go ahead and nominate Gonzales "in the face of deep and broad opposition from the president's own political base."

Added to the mix is the strong probability that ailing Chief Justice William Rehnquist is on the verge of announcing his retirement.

Such a scenario may give Bush the idea he has political cover to appoint Gonzalez.

As Novak puts it, Bush could "name one justice no less conservative than Rehnquist, and name Gonzales, whose past record suggests he would replicate retiring Justice Sandra Day O'Connor on abortion and possibly other social issues."

If Bush would do this, Novak says it would be a massive defeat for conservatives because "the present ideological orientation of the court would be unchanged, which would suit the Left just fine."

Novak also noted that O'Connor was not considered a conservative when she was nominated 24 years ago, and writes that "the worst fears about her were realized by her consistently liberal positions on social issues. With Democrats now setting a new standard for conservatism, Republican senators could only bite their lips and praise her." Novak conceded that Gonzales "would not exactly be another O'Connor, but he is still considered a disaster by Republican conservatives."

"Gonzales trial balloons were shot down on the right, but that has not stopped leaks from the White House. If a Rehnquist vacancy now is thrown into the mix, Novak asked if Bush will be tempted to temporize by naming one conservative and one non-conservative? "Consequently, Bush's USA Today interview has been a source of intense anxiety on the right. Typically, the president did not defend Gonzales on his merits but with outrage that anybody would dare criticize his friend. That reflects a general schoolboy attitude that is losing the president support from fellow Republicans and conservatives."

[swampsniper]

It sure won't be much trouble to start filling the WH inbox with emails in support of Alex Kozinski. Just do it :D

[publius]

I don't think a million of us actually marching in Washington could get Kozinski a nomination. I think that if he were the last qualified person remaining on the planet, we just would not get a nominee until someone else gained the necessary qualifications. He just does not possess the prerequisite understanding of the commerce clause, namely, that it covers pretty much anything the Congress says it should cover.